Re: [ga] WLS: ICANN should approve it (and be sued for that).

[Don Brown <donbrown_l@inetconcepts.net>]

[cc's clipped]

Thomas,

ICANN is obligated to promote competition where ever possible.
Approving WLS is diametrically opposed to that mission.

WLS "will" (not "may") put those already in the market out of that
business, because the Registry will have exclusive control over the
source of supply. Frankly, to argue otherwise is simply unrealistic.

If existing market participants are violating the RAA by participating
in this market, then ICANN is obligated to redress them. They have
not. So, similar to your statement below, they must have
rubber-stamped it. Of course, I really don't believe that failing to
enforce the terms of the RAA waives the right to enforce them later.
However, the key statement you make is that no one can prove there has
been a breach. So, that, in and of itself, makes all of that dialog
totally irrelevant to anything.

Approving WLS is approving a sole source provider and that puts all of
the existing competitors out of business. That's plain wrong, unfair
and it is most probably a breach of the RAA by ICANN. In this case,
however, that's a breach which "can" be readily proven.

About the only thing in your post to which I agree is that ICANN will
most probably be sued, and rightfully so, if they approve WLS. ICANN
will also be providing the DoC with an overwhelming example of how
they are ignoring their obligations under the MoU to promote
competition where ever possible and to be a bottoms-up organization.
Even ignoring the V$ hate motivated messages, the community's disdain
for WLS is clear.

When you put perfume on a hog, you still have a hog in the final
analysis.

Thanks,


Friday, August 23, 2002, 4:27:51 AM, Thomas Roessler <roessler@does-not-exist.org> wrote:
TR> On 2002-08-22 21:45:16 -0700, Karl Auerbach wrote:

>>To: George Kirikos <gkirikos@yahoo.com>
>>Cc: ga@dnso.org
>>Subject: Re: [ga] WLS Suggestion
>>
>>OK, you (and everyone else) convinced me.

TR> I'm not so sure you should be convinced.  

TR> At least my most important concerns about WLS are actually resolved 
TR> in the general counsel's report:

TR>  - The perverse incentives for registrars created by WLS - namely,  
TR>    not extending existing registrations, and letting a WLS  
TR>    subscription ripen - are kind of mitigated by the redemption grace 
TR>    period.

TR>  - The business model to hoard domain names in order to later sell  
TR>    them off through WLS subscriptions (and subsequent "deletion") is  
TR>    addressed by the agreement to prevent sponsoring registrars from 
TR>    placing WLS subscriptions on a domain name in the 60 days before 
TR>    the name expires.  (Note that this restriction is messy and  
TR>    entirely unnecessary when the current registrant wants to place  
TR>    the subscription!)

TR>    At the same time, this removes part of registrars' incentives to
TR>    hoard domain names in order to unfairly compete about WLS  
TR>    subscriptions - delete the name when a subscription is placed  
TR>    through the sponsoring registrar, don't delete it when the  
TR>    subscription is placed through a competitor.  
   
TR>    (Actually, the version of this argument given by Louis in his 
TR>    report is not accurate.)

TR>    Once again, this is not the perfect solution - the correct  
TR>    approach would be to mandate the point of time when registrars  
TR>    send the DELETE command to the registry.

TR> Note that these are genuine policy matters, and clearly within 
TR> ICANN's scope.


TR> The single most important concern which remains - and it's the one  
TR> George and friends are emphasizing - is that WLS may put existing 
TR> registrar-based approaches out of business.  The existing  
TR> used-domain dealers demand that their business models be protected.  
TR> I'm sorry to say this, but they are pretty close to Hollywood's  
TR> crusade against the net in that - I think Bruce Schneier paraphrased 
TR> the latest legislation around intellectual property like this: "They 
TR> are creating a new crime, interference with a business model."

TR> ICANN should not get into the business of prosecuting this "crime"  
TR> in the registy/registrar market - and that's precisely what not  
TR> accepting WLS would mean.  Don't let George's argument fool you,  
TR> when he says that "changing the contract" amounts to "action" and  
TR> "not changing the contract" amounts to a hands-off approach.  I'm 
TR> sorry, George - this is (good, and, it seems, effective ;)  
TR> rhetorics, and not an argument: Hands-off means that you let others  
TR> do what they want.  Normally, that's equivalent to "do nothing".   
TR> However, when to "do nothing" means to forbid an activity, a  
TR> hands-off approach implies rubber-stamp approval.


TR> Of course, this was only half of the argument, so far: I didn't  
TR> address the fact that existing competition would be replaced by a  
TR> _monopoly_.  It's the context in which I believe that protecting  
TR> business models is a good idea and a requirement: When existing,  
TR> lawful business models would be threatened by a new business model  
TR> which can only be implemented as a monopoly.  There are two tests in 
TR> this:

TR>  - Does the new business model necessarily imply a monopoly service? 
TR>    The answer is obviously yes.

TR>  - Are the existing business models lawful?  Can current  
TR>    expired-domain registration services compete without registrars  
TR>    violating their accreditation agreements by letting others  
TR>    control "their" transactions with the registry?  I'm not sure  
TR>    that this question will ever be answered based on information  
TR>    easily accessible to ICANN and the public.  But there are some  
TR>    indications that the answer is "no".  Ups.
   
TR> Given the lack of information, and given that this is a classical  
TR> question for governments and courts to address, I believe that ICANN 
TR> should do precisely that: Leave the question to governments and  
TR> courts, i.e., do not address it in your decision.


TR> Thus, ultimately, I would strongly recommend that ICANN approves  
TR> this service - fully aware of the perspective that it will quite  
TR> likely be sued for this decision.



TR> Finally, there is one relatively deep point to this, well worth the  
TR> board's attention - for the future, because it's too late to address 
TR> this for WLS: It's Steven Heath's question whether new monopoly  
TR> services based on the registry's data should automatically be the  
TR> registry's privilege, or whether these services should be subject to 
TR> a public bidding process.  

TR> I'm not entirely sure whether Louis' argument that the .name 
TR> services set a precedent for this actually works: After all, with 
TR> .name the new service was introduced from the very beginning.  There 
TR> may be some merit to treating services to be added later differently 
TR> than services included in the original TLD concept.




----
Don Brown - Dallas, Texas USA     Internet Concepts, Inc.
donbrown_l@inetconcepts.net         http://www.inetconcepts.net
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